How to politely decline…and avoid a lawsuit

Recently, Allison Shields posted here on the benefits that lawyers can gain from hospitality, which is what excellent client service is all about. But this article Thou Shalt Not… by Steven Lubet (American Lawyer, 7/2006) got me to thinking that hospitality and just plain courtesy have other benefits as well: they can spare you from a lawsuit or ethics complaint.

At first blush, Lubet’s article, about a lawsuit alleging First Amendment violations by a disgruntled client spurned by a law school clinic seems to hold little advice for private lawyers running a practice. Here’s what happened. The North Dakota law school runs a state funded legal clinic that handles civil rights matters. In 2003, the clinic challenged a public display of the Ten Commandments. In 2003 the legal clinic’s Civil Rights Project represented five members of the Red River Freethinkers in a challenge to the placement of a Ten Commandments monument standing outside the city hall in Fargo, North Dakota. When Martin Wishnatsky, an anti-abortion activist learned about the litigation, he wrote a letter to the editor, criticizing the litigation as attacking the faith of millions and an inappropriate use of state funds.

To get back at the clinic, in 2005, Wishnatsky wrote to Professor Rover, seeking help in developing a lawsuit against “Grand Forks County and other relevant parties for having a statue of the Greek goddess Themis on top of the Grand Forks County Courthouse.” Themis is the well-known figure of a blindfolded, toga-clad woman holding the scales of justice. Wishnatsky explained: “as a Christian, I find such representations of pagan religious figures in public places very disturbing,” and indeed, “I feel like a second-class citizen when subject to such governmental displays.” He requested the clinic’s assistance “on the same basis as that granted to the [plaintiffs] to bring suit against the city of Fargo over the Ten Commandments monument.”

As Lubet describes, there are legitimate questions regarding
Wishatsky’s claims, such that Rovner would have been fully justified in
declining his case. But rather than simply decline politely, Rover did
the following:

She sent Wishnatsky a letter informing him that due to
limited resources, the Civil Rights Project was “unable to accept any
new cases at this time.” That probably would have ended the ironic pas
de deux, but Rovner evidently could not resist going further. Even if
they had sufficient resources, she continued, “our independent
professional judgment is that your persistent and antagonistic actions
. . . would adversely affect our ability to establish an effective
attorney-client relationship with you and would consequently impair our
ability to [represent] you.” Thus, she concluded, “our ethical
obligations . . . prohibit us” from accepting the case.

At that point, Wishnatsky sued arguing that she had declined his case
based on his public criticism of the clinic and its role in the Ten
Commandments case. The lower court dismissed it, but Wishnatsky, with
the aid of prevailed at the Eighth Circuit:

According to the appellate court, the clinic’s argument
amounted to a claim “that it may exclude persons from the program
solely on the basis of their viewpoint [emphasis in original].” Taken
to its logical conclusion, the court observed, that position would
allow the publicly funded program to “accept as clients only persons
who belong to one political party.” (the case has since been remanded
and is pending in District Court)

Whether you agree with the Eighth Circuit or not, none of this would have happened if Rovner had acted courteously. Instead of calling Wishnatsky on his “antagonistic conduct,” she should have simply declined to take the case but advised Wishnatsky to seek other counsel if he remained interested in bringing the case. She could even have provided a number for the bar referral office.

When you go to someone’s home and you’re served something you don’t enjoy, you don’t criticize the food to the host. Instead, you politely make excuse, that you’re too full to eat any more. And when you turn down a client, you do so with the same courtesy. The client may have been a jerk when he came to your office, he may have unreasonable expectations of the case or seem like a cheapskate. Don’t put that in the letter. Simply say that you do not believe that you can be of assistance and direct the client to seek out another attorney.

Lubet says that Rovner should have had her students investigate Wishnatsky’s case; then she could legitimately reject the case because of lack of merit rather than distaste for the client. That solution may be appropriate for a law school where students can research matters for free, but it does not always work in a law practice. Lawyers have the right to turn down clients for any reason, ranging from lack of confidence in the strength of the case to vibes about whether the client will prove difficult. But when you turn down clients, treat them with respect and courtesy. If you can’t act courteously because it’s the right thing to do, then at least do it to avoid facing a spurned client’s wrath – and possible grievance or lawsuit – if you don’t.

I basically agree. Lawyers need to remember to say “no” with a teaspoon full of sugar.
In my own practice, if I reject a potential client because I think they are a collection risk, I usually don’t say “I’m not going to help you because I think you won’t pay my bills.”
Instead, I say “It sounds like you are in serious financial trouble, and so I’m going to refer you to someone who will represent you for free, because I charge a large fee.” I then give them the phone number for Legal Services. 9 times out of 10, they thank me for being so helpful.
________________________
The other point is that a declination letter should contain as little information as possible. The only points that need be conveyed are (1) we’re not going to help you; and (2) if you wish to pursue your claim, you should do so promptly as there are strict time limits.
Don’t put any reason for the declination in the letter. Don’t tell the person what the statute of limitations is for their claim. Putting this sort of information in can only hurt the lawyer.

elguapo

I basically agree. Lawyers need to remember to say “no” with a teaspoon full of sugar.
In my own practice, if I reject a potential client because I think they are a collection risk, I usually don’t say “I’m not going to help you because I think you won’t pay my bills.”
Instead, I say “It sounds like you are in serious financial trouble, and so I’m going to refer you to someone who will represent you for free, because I charge a large fee.” I then give them the phone number for Legal Services. 9 times out of 10, they thank me for being so helpful.
________________________
The other point is that a declination letter should contain as little information as possible. The only points that need be conveyed are (1) we’re not going to help you; and (2) if you wish to pursue your claim, you should do so promptly as there are strict time limits.
Don’t put any reason for the declination in the letter. Don’t tell the person what the statute of limitations is for their claim. Putting this sort of information in can only hurt the lawyer.

http://www.HowToMakeItRain.com RJON@HowToMakeItRain.com

These are all excellent points above. I have three of my own to add (plus two great resources to share):
1. The Non-Engagement Letter – Allison’s follow up comment is right on point. The non-engagement letter should be as brief as possible. And whatever you do, DO NOT TRY TO BE “NICE” AND OFFER ADVICE AS TO THE APPLICABLE STATUTE OF LIMITATIONS for the case you are declining. You wouldn’t be the first attorney (or the second) who got a bar complaint or a malpractice action filed against you for offering a helpful tip only to discover there’s more to the case than you knew.
2. Good Ethics/Good Business & Courtesy I was just speaking about good ethics/good business, etc. with the Director of the Michigan State Bar’s brand-new Law Office Managemet Assistance Service (Hint to any Michigan lawyers reading this – you have a great new resource available to you.) We were taking turns on the soap box, ranting about how often (always) we keep re-discovering the fact that good ethics, good business & common courtesy go hand-in-hand. You cannot have a profitable law firm in the long-run unless you are ethical, polite & truly give a hoot about the best interest of your clients.
3. Client Intake Procedures As Ms. Elefant points-out, being solos we don’t have a staff of law students working for free to do a bunch of research into whether or not we want to accept a given client or case & then paper the file with a legal brief about why we decide to accept or decline. But we do have the mistakes of thousands of others who have walked down this road before us to learn from.A GREAT RESOURCE, (even if I do say so myself) — I took the lessons I learned from seeing hundreds of mistakes made by other lawyers & plenty I’ve learned from my own mistakes. . . and I turned them into live workshop which I presentd to a sold-out, standing-room-only crowd of more than 200 solos & small firm lawyers. We recorded that program & now sell it for only $199, to help educate lawyers step-by-step (with sample forms)about how to conduct a highly effective client intake procedure that is both courteous and profitable. It’s called Turning Your Clients Into Gold and it more than pays for itself in increased profits/decreased bad a/r, plus greatly reducing the chances of ever making a mistake like the one discussed above.
Respectfully,

http://www.HowToMakeItRain.com RJON@HowToMakeItRain.com

These are all excellent points above. I have three of my own to add (plus two great resources to share):
1. The Non-Engagement Letter – Allison’s follow up comment is right on point. The non-engagement letter should be as brief as possible. And whatever you do, DO NOT TRY TO BE “NICE” AND OFFER ADVICE AS TO THE APPLICABLE STATUTE OF LIMITATIONS for the case you are declining. You wouldn’t be the first attorney (or the second) who got a bar complaint or a malpractice action filed against you for offering a helpful tip only to discover there’s more to the case than you knew.
2. Good Ethics/Good Business & Courtesy I was just speaking about good ethics/good business, etc. with the Director of the Michigan State Bar’s brand-new Law Office Managemet Assistance Service (Hint to any Michigan lawyers reading this – you have a great new resource available to you.) We were taking turns on the soap box, ranting about how often (always) we keep re-discovering the fact that good ethics, good business & common courtesy go hand-in-hand. You cannot have a profitable law firm in the long-run unless you are ethical, polite & truly give a hoot about the best interest of your clients.
3. Client Intake Procedures As Ms. Elefant points-out, being solos we don’t have a staff of law students working for free to do a bunch of research into whether or not we want to accept a given client or case & then paper the file with a legal brief about why we decide to accept or decline. But we do have the mistakes of thousands of others who have walked down this road before us to learn from.A GREAT RESOURCE, (even if I do say so myself) — I took the lessons I learned from seeing hundreds of mistakes made by other lawyers & plenty I’ve learned from my own mistakes. . . and I turned them into live workshop which I presentd to a sold-out, standing-room-only crowd of more than 200 solos & small firm lawyers. We recorded that program & now sell it for only $199, to help educate lawyers step-by-step (with sample forms)about how to conduct a highly effective client intake procedure that is both courteous and profitable. It’s called Turning Your Clients Into Gold and it more than pays for itself in increased profits/decreased bad a/r, plus greatly reducing the chances of ever making a mistake like the one discussed above.
Respectfully,